Paternalism, Moralism and the Harm Principle

3. Paternalism, Moralism and the Harm Principle:

Libertarians reject moralistic and paternalistic uses of state power. They often cite the harm principle, first articulated by John Stuart Mill: “The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.”5 Mill’s harm principle leads to a rejection of paternalistic laws. Paternalistic laws are laws that protect individuals from harming themselves. Paternalistic laws force (or encourage) citizens to do what is good for them, or avoid what is bad for them. Examples of paternalist laws are seatbelt laws; laws against suicide or assisted suicide; laws prohibiting the recreational use of drugs; laws permitting people to be subjected, against their will, to hospitalization or medical treatment. These laws restrict what you can do to yourself because they are bad, or risk being bad. Some paternalistic laws restrict what others can do to you even if you consent. Think here of laws against assisting a suicide, forbidding the unlicensed practice of medicine, or forbidding employers to hire employees for super-long shifts or to do exceedingly dangerous work. Mill’s harm principle also leads to a rejection of moralistic laws. Moralistic laws force (or encourage) individuals to do what is morally right, or avoid doing what is morally wrong. Consider some examples of moralistic laws: laws providing benefits to married people (because marriage is morally good); laws against performance-enhancing drugs (because it is morally wrong to change one’s basic physiology); laws against prostitution (because selling sex is immoral); laws against selling human organs (because the human body is sacred). Some laws are both paternalistic and moralistic (they are motivated both by the belief that the conduct in question is bad for the one engaging in it and that it is immoral). Laws against performance enhancing drugs are paternalistic (they protect athletes from harming themselves) and also moralistic (changing one’s basic physiology is immoral).

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